Barrister Guy Waterman discusses a Family Court of Australia Full Court decision which emphasises the exquisitely “finely-balanced” nature of child relocation cases involving a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions.

The Full Court’s Judgment in Molloy & Reid considers an appeal on behalf of the Mother in circumstances where the Mother was not permitted to relocate with the children from Queensland to New Zealand.

The children [B] aged 10, [C] aged 9 and [D] aged 6 respectively had been living with the parents in a Queensland town for 10 years.

Interim orders were made in 2016 for the children to live with the Mother and spend 5 nights a fortnight with the Father.

A Family Consultant has provided a report to the Court recommending inter alia that the Mother not be permitted to relocate, but that the children continue to live with her and spend time with the Father each fortnight: six nights for B, four nights increasing to five for C, and three nights increasing to four for D.

Following the trial in June 2017 the primary Judge, apart from refusing the Mother permission to move to New Zealand, made orders for equal shared parental responsibility and for the children to live with the Mother and spending 4 nights a fortnight with the Father (save for B who is to spend an additional night), as well as half the school holidays and other special dates (Para 12).

The primary Judge recorded 11 issues that had been identified at a trial management hearing with the assistance of the parties (Para 13). It is useful to set out the list as follows:-

1. What is the nature of the relationship between each parent and the children.
2. What risk, if any, does each parent pose to the children, and what, if any, means are available to mitigate it.
3. Would the children benefit from a meaningful relationship with each parent, and, if so, how might it best be facilitated.
4. Is it reasonably practicable for the Mother to remain living in [O Town], and if so, what effect would it have upon:
(a) Her emotional and financial circumstances; and
(b) Her parenting capacity.
5. What benefits would relocating to New Zealand have for the Mother, particularly in relation to:
(a) Her financial circumstances;
(b) Her family support;
(c) Her parenting capacity
6. Is it reasonably practicable for the Father to relocate to New Zealand, and if so, what effect would doing so have upon:
(a) His emotional and financial circumstances,
(b) His parenting capacity.
7. If the Mother and children relocated to New Zealand, but the Father did not, would the Mother facilitate a meaningful relationship between the Father and the children.
8. Is it reasonably practicable for the Father to spend time with the children in New Zealand.
9. What is the likely effect upon the children of relocating to live in New Zealand if the Father did not also do so.
10. What is the likely effect on the children if the Mother relocates to New Zealand but the Father and children do not.
11. Is the parties’ communication adequate to support equal shared parental responsibility.

The primary Judge went on to discuss each of the identified issues determination of which he had earlier said was “likely to substantially impact upon the outcome” (at [25]). The Full Court attached some importance to his Honour finding “that if the Mother had to remain in O Town, she was “likely to continue to suffer anxiety and stress and will feel, in a sense, as though she is trapped within circumstances which she cannot control”.

It was further found by the primary Judge that if the Mother was to return to New Zealand there would “likely be an improvement in her emotional circumstances, and some improvement in her financial circumstances” (at [57] and [60]). His Honour also found that she “may be a somewhat better parent to the children, and at least likely somewhat more emotionally available to them” if permitted to relocate (at [61]).

The Full Court noted that primary Judge’s findings had been “made against the background of the Mother’s claims that the Father had engaged in family violence” (Para 18). It was further noted that the primary Judge had made no explicit finding in respect of the Father engaging in such violence, as follows:-

“Whilst I am not satisfied that the Father deliberately set out to dominate, control or otherwise manipulate the, I am satisfied that was indeed her experience of him for much of the relationship. I accept her evidence in that regard, and where there is a conflict between her and the Father as to the perceived impact of his behaviour on her, I prefer her evidence” (at [53]).

It was further noted that the primary Judge

“Despite the allegations of violence, and acceptance of the Mother’s evidence, his Honour observed that: Both parties sought orders for equal shared parental responsibility … the Mother did not seek to argue that the presumption should be displaced” (Para 19).

The primary Judge also found that if the Mother were to relocate, she would likely facilitate “a continuing relationship between the Father and children, which may well fall short of being an optimal one, but on balance is likely to nonetheless remain meaningful, as that term is discussed in the authorities” (at [69]).

The primary Judge also found it was not “reasonably practicable” for the Father to relocate and consequently, if relocation was permitted, the Father “would be quite limited in the amount of time he could spend with the children in New Zealand” (at [64], [70] and [71]).

After finding that an equal time regime would not be in the children’s best interests, his Honour considered whether to make an order for “substantial and significant time”, noting in relation to that issue that “the Mother’s relocation application looms large” (at [102]).

The primary Judge considered the following in favour of the Mother relocating as follows:-

The Mother would have improved emotional support In New Zealand from family and friends;

The Mother had better prospects of employment in New Zealand;

The Mother was likely to experience reduced anxiety and stress because of the diminished prospect of inadvertently having contact with the Father; and

The Mother will likely perceive that she has been able to choose where she lives rather than being “trapped” in a [place] which, according to her evidence, she only agreed to ever live in for a period of two years.

The primary Judge went on to consider the points that tended against relocation:-

It is likely to substantially diminish the children’s relationship with the Father, and cause them, at least, short term grief and loss;

[B]’s weekly face-to-face time with the Father, focused on [sport], would fall away;

The Mother’s prospects in New Zealand may not prove to be as rosy as she thinks

It would not permit the children to have a relationship with the Father that would involve spending substantial and significant time with him;

The Mother has now lived in [O Town] for 10 years, and coped with doing so, and successfully parented the children, albeit perhaps at a sub-optimal level.

The primary Judge, not without considerable hesitation, weighed those factors as tipping the balance against permitting relocation (Para 105). The primary Judge found that although the Mother “is unsatisfied, anxious and suffering stress, nonetheless she has been able to cope” (Para 105).

The primary Judge found

“The cost of improving her situation is to dramatically diminish the children’s relationship with the Father. I conclude that, viewed from the children’s perspective, the disadvantages to them outweighs the advantages of relocation, which is not in their best interests” (at [105]).

The Mother conceded that the relocation would impact on the children in her affidavit affirmed just a few weeks prior to trial. The Full Court found that there was no error in the primary Judge reciting, and giving weight to, a concession made against interest by a party in their sworn evidence (Para 57). Further that the claim that the Report Writer had been unable to explain to warrant criticism of his Honour for relying upon the report writer’s original report (Para 57).

The primary Judge observed

“But the reality is, as I’m sure I don’t need to emphasise to you, that this is an exquisitely finely-balanced case, it seems to me, in that both of you have got good reasons to support the positions that you’re adopting in relation to the issue of relocation. And ultimately, I have the unfortunate task of determining which of those positions is the more meritorious from the “children’s best interests” perspective” (Para 58).

In relation to the primary Judge’s exercise of discretion the Full Court observed

“while a different result was certainly available on the evidence, there is no basis for us to interfere with his Honour’s exercise of a very broad discretion” (Para 60).

The Full Court ultimately found that there was no merit in any grounds of the appeal and the appeal was dismissed.

Molloy & Reid emphasises the exquisitely “finely-balanced” nature of relocation cases involving a discretionary Judgment in respect of which Judges can come to opposite but reasonable conclusions.

The Full Court stated “the identification of issues is crucial to the adjudication of every case and their exposition can usually be helpful. However, it is crucial that the issues are framed correctly and with precision and particularity” (Para 35).

Further of interest is the approach taken in respect of the issue of domestic violence in circumstances where notwithstanding the Mother’s anxiety and discomfort in the presence of the Father, it was the position of both parents that an order for equal shared parental responsibility was common ground.

The question arises if the outcome would have been different if the Mother had sought to rebut the presumption of equal shared parental responsibility on the basis of the findings based on domestic violence and sought an order for sole parental responsibility.

In any event the primary Judge refused the Mother’s permission to relocate to New Zealand based upon the best interests of the children.

As indicated above, the competing applications were finely balanced. The case also highlights the importance of identifying the relevant issues with precision and particularity which serves as a guide to considering the relevant evidence to support either parent’s case or in rebuttal of the other parent’s case.

Guy Waterman was admitted as a Solicitor and practised extensively in the area of De Facto and Family Law and as a Mediator prior to being called to the Bar in 1993. Guy has continued to practice in the Family Law/De Facto areas as a Barrister and Mediator and during this time and has presented at seminars dealing with Family Law & Practice – Disclosure, compliance with Orders and making the most of financial experts in financial matters in conjunction with Joe Box, forensic accountant and Greg Jorgenson, registered valuer at BAQ, and Cost – Orders, Offer and Risks, How to Deal with a Client Raising That The Solicitor For The Other Party Has A Conflict Of Interest And Should Be Restrained From Acting, and Family Law Legislative Reform and Case Update.